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February 18, 2014
  Patel v. City of Los Angeles
Headline: Ninth Circuit Declares Los Angeles Municipal Code § 41.49 Facially Invalid Insofar as the Statute Authorizes Records Inspections Without Affording Prior Judicial Review.

Area of Law: Civil Rights; Fourth Amendment; Administrative Searches

Issue(s) Presented: Whether, on its face, Los Angeles Municipal Code § 41.49 violates the Fourth Amendment where it authorizes inspection of hotel guest records without providing an opportunity for hoteliers to obtain prior judicial review.

Brief Summary: § 41.49 requires hotel and motel operators to gather certain information from each guest. The challenged portion of § 41.49 provides law enforcement the authority to conduct non-consensual searches of these guest records. Plaintiffs are hotel owners and challenge the statute on the grounds that it is facially invalid under the Fourth Amendment. The Ninth Circuit upheld the challenge.

The court noted that the type of inspection authorized by § 41.49 constitutes a search for Fourth Amendment purposes as it involves "both a physical intrusion upon a hotel's papers and an invasion of the hotel's protected privacy interest in those papers." It found this type of search unreasonable because although a search warrant is not required for such inspection, at the very least, the hoteliers should be afforded an opportunity for judicial review prior to complying with the search.

The court rests its analysis upon two assumptions. First, that the type of search authorized by § 41.49 is an administrative search, as opposed to a search for evidence of a crime. And second, that the intended search will take place in the public area of the hotel.

With these two assumptions in mind, the court found the absence of a judicial review safeguard renders § 41.49 facially invalid. It held the government must allow hoteliers an opportunity to challenge the reasonableness of the search in court prior to infliction of non-compliance penalties. With that, the court reversed and remanded.

Judge Tallman dissented on the basis that the court should not issue advisory opinions. He opined that the it is improper for the court to declare a statute invalid absent a specific factual scenario wherein a hotelier's Fourth Amendment rights have been potentially violated. Judge Tallman would entertain a challenge of the statute if plaintiffs asserted an as-applied challenge.

Judge Clifton dissented because the majority, in his opinion, failed to adequately address the facial challenge to § 41.49. He noted the extremely high burden required for a successful facial challenge to a statute, and opined the majority failed to meet such burden.

For the full opinion:

Extended Summary: Plaintiffs are hotel operators who have been and will be compelled to submit to warrantless records inspections pursuant to § 41.49 of the Los Angeles Municipal Code. Plaintiffs challenged the portion of the statute which provides hotel guest records "shall be made available to any member of the Los Angeles Police Department for inspection," simply upon request by an officer. Defendant, the city of Los Angeles, conceded that the provision authorizes records inspection without a warrant and without consent. Plaintiffs sought declaratory and injunctive relief to preclude continued use of § 41.49, on the grounds that the provision violated the Fourth Amendment.

In examining the district court's holding that § 41.49 was not facially invalid, the Ninth Circuit first asked whether the inspection of hotel records constituted a search. A search occurs when a reasonable expectation of privacy is violated, or where the government physically intrudes on a protected area. The court held that, under § 41.49, there is both a violation of a privacy interest and a property interest.

Finding that a Fourth Amendment search does occur under § 41.49, the court turned to whether such searches are reasonable. To this end, the court stated two assumptions upon which it would rely - 1) the type of search in question is an administrative search and 2) the challenged search authorizes inspection in public areas of the hotel, such as the guest lobby.

Administrative searches are appropriate when they are "limited in scope, relevant in purpose, and specific in directive so that compliance is not unreasonably burdensome." Additionally, the party subjected to the search must have an opportunity for judicial review prior to compelled compliance. The court agreed that § 41.49 passes muster as to scope, purpose and specificity, but held that the lack of judicial review renders the statute unconstitutional.

In holding § 41.49 facially invalid, the court held that the lack of judicial review constitutes a lack of an essential procedural safeguard such that there is no circumstance under which the statute could be constitutionally applied.

Judge Tallman's dissent disagrees with the majority's review of the case. In his opinion, Fourth Amendment challenges are only appropriate when based on an actual factual basis. Because plaintiffs here dropped their factual challenge in favor of a facial challenge, Judge Tallman thinks it inappropriate for the court to offer what he characterizes as an advisory opinion. He asserted that because § 41.49 does not abrogate LAPD's duty to adhere to the Fourth Amendment, the only way to determine if the statute is violating the same is to examine a factual scenario.

Judge Clifton dissented on the grounds that although facial challenges are appropriate in some cases, plaintiffs did not met that very high burden here. He notes that a facial challenge requires there be no circumstances under which the statute could be constitutionally applied. Judge Clifton recognized the majority pointed to some instances where § 41.49 would be unconstitutionally applied, but failed to examine all instances.

Panel: Alex Kozinski, Chief Judge, and Diarmuid F. O'Scannlain, Raymond C. Fisher, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Consuelo M. Callahan, Milan D. Smith, Jr., Mary H. Murguia, Morgan Christen and Paul J. Waterford, Circuit Judges.

Date of Issued Opinion: December 24, 2013

Docket Number: 2:05-cv-01571-DSF-AJW

Decided: Reversed and remanded

Case Alert Author: Kathleen M. McHale

Counsel: Frank A. Weiser (argued), Law Offices of Frank A. Weiser, Los Angeles, California, for Plaintiffs-Appellants; Todd T. Leung (argued), Deputy City Attorney; Rockard J. Delgadillo, City Attorney; Laurie Rittenberg, Assistant City Attorney, Office of the City Attorney, Los Angeles, California, for Defendant-Appellee.

Author of Opinion: Opinion by Judge Watford; Dissent by Judge Tallman; Dissent by Judge Clifton.

Case Alert Circuit Supervisor: Professor Ryan Williams

    Posted By: Ryan Williams @ 02/18/2014 01:22 PM     9th Circuit  

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